Anti-corruption drive: Scope of disclosure

"An anti-corruption drive will be launched to collect declaration of assets of officers of BS-19 to BS.22 of lucrative departments and of all the cadres of the federal government." (Business Recorder dated 3 October 2010 regarding direction of the Interior Minister to FIA)
How the FIA would be able to collect declarations has not been mentioned in the statement? Filing of annual declaration is a mandatory requirement for all government servants, but compliance is very sporadic. For example the Federal Board of Revenue (FBR) had issued instructions to heads of its field formations on 1st July 2010 that all the officers/officials, serving under their administrative control, are required to submit by 31 July 2010 their declaration of income, expenses and assets for year ending 30 June 2010.Instructions further stated that "the officials/officers, who have not yet submitted their declaration of assets pro forma for the years ending on 30th June 2005, 2006, 2007, 2008 and 2009, may be advised to send the same immediately to the FBR without further delay."
Foretasted pendency of earlier years indicates the level of non-compliance to the Rule 12 of the Government Services (Conduct) Rules 1964 under which annual declaration is to be submitted. Whereas under Section 116 of Income Tax Ordinance, 2001, the taxation officers have been empowered to call for statement of assets from any taxpayer and in May/June 2010, thousands of such notices were issued to taxpayers, including salaried persons whose declared income for tax year 2009 exceeded Rs 500,000. These notices were issued when tax officers were themselves defaulters under the aforesaid Conduct Rules in respect of their assets declaration.
The FBR instructions further stated that "it may be brought to the notice of the concerned that non-compliance of aforesaid instruction is tantamount to misconduct in terms of Government Servants (Conduct) Rules 1964 and cognisable under the relevant Rules."
CONSEQUENCES OF DELAY Whereas as per instructions of the Establishment Division on the subject dated 19 September 1982, "it will be the responsibility of ministries/ divisions/departments/corporations/autonomous bodies to obtain the declaration of assets in respect of persons serving under them. Failure to file the declarations on the prescribed date or within fifteen days thereof would be construed as misconduct and the defaulters will be liable to disciplinary action under the rules. Action against the defaulting persons will be taken by the respective ministries/divisions/departments/organisations etc under whom the official is serving for the time being in accordance with the relevant disciplinary rules."
From the above, it is evident that if declaration is late by 15 days, it is construed as misconduct liable to disciplinary action. Whereas the FBR is merely advising its officers who have not submitted their declaration for years to submit these without further delay and even has not withdrawn their 100% special allowance what to say of taking any disciplinary action. A request has been made to the FBR under Freedom of Information Ordinance to provide the number of officers who have not filed assets declaration and are getting 100% Special Allowances but is very unlikely to be acceded to.
WHY THERE IS WILLFUL DEFAULT? It is noteworthy that prior to 2005, only declaration of assets and liabilities was the requirement. In 2005, the rules and the pro forma were revised and columns for annual income and annual expenses were also introduced. Since then, non-compliance has increased. Reason is very obvious and that is living beyond lawful means and in case, the officers reflect the expenses correctly, they would be admitting living beyond means and in case they understate expenses they may be penalised for wrong declaration. Hence not filing the declaration is the better option as their controlling officers are also facing the same situation and cannot enforce compliance from their subordinates.
In the declaration pro forma, information has been called for utilities expenses of electricity, gas, telephone and mobile phones in use of officer, spouse and dependent children. Information has also been called for, regarding foreign travelling, club membership and total household expenses by including names of the children and name of the education institution attended in Pakistan or abroad. There is craze of foreign education across the country and children of government officers are no exception as there is no enforcement of declaration of income, expenses and assets what to say of any reconciliation thereof, especially of expenses.
Even if declaration is made that is neither monitored by the ministry/division nor made public as there is no such provision in the conduct rules. Whereas as per 42A of the Representation of the People Act 1976 declaration of assets of members of National and provincial assemblies is to be made public and is published in official Gazette and copies can be obtained on payment of prescribed fee. Similar is the provision for senators.
Article 8 of the United Nations Convention Against Corruption (UNCAN) 2003 is about codes of conduct for public officials, and it calls for states to promote "honesty and responsibility among its public officials". In particular, article 8.5 calls for the establishment of "measures and systems requiring public officials to make declarations to appropriate authorities regarding, among other things, outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials".
Pakistan is a signatory to the aforesaid UN Convention. Formally speaking, Pakistan already has comprehensive legislation on income, expenses and asset, declaration, yet in practical terms, its implementation is not being ensured, coupled with absence of monitoring the accuracy and veracity of the declarations. Similarly, there is not much value in not making these declarations publicly available.
Instructions printed on the declaration forms states that "Notwithstanding the applicability of any other law for the time being in force, this declaration is being filed under Conduct Rules, 1964 and any breach thereof (including concealment of assets or giving wrong information) is punishable under Removal from Service Ordinance, 2000." However, search has not revealed any instances of such punishment in the context of declaration. Same is the case of any disciplinary action for late filing of declaration by more than 15 days what to say of any action for non-filing.
Whereas as per section 42A of the Representation of the People Act, 1976, if any elected member of the assembly does not file his annual assets declaration, the Election Commission shall, by the fifteenth day of October each year, notify the names of the members who fail to file statements of assets and liabilities within the period and by an order, direct that such member shall cease to function till such statement is submitted. Whereas, on non-compliance, there are no automatic consequences of any such default, by the government officials.
Each country's legal and normative framework regarding assets declarations is different. Yet, one element in common is regulations concerning the disclosure of assets and interests to help prevent conflicts of interest. The scope of disclosure also varies considerably from country to country. Some countries prefer to restrict disclosure requirements to senior office holders or those in sensitive positions; others require declaration of less senior public officials.
Only a few countries require asset disclosure of all civil servants at all levels. However, the best results tend to be one where they restrict the declaration to senior officials, as it is more realistically manageable.
In terms of sanctions, again, different countries have different provisions. Let's discuss countries similar to Pakistan. In Mexico, for example, the non-declaration of assets leads to a temporary suspension from the post for up to 15 days. If the omission persists for 30 days after the date of suspension, the official's contract can be annulled. In terms of making inaccurate statements, Mexico's legal system stipulates a suspension for no less than three days and no more than three months (depending of the severity of the offence the official can also be dismissed for between one to five years).
In the case of the Philippines, failure to submit asset declaration may lead to suspension from one to six months, if it is a first offence. In it happens again the official in question can be dismissed from public service. The Philippines also stipulates criminal charges, including imprisonment, not exceeding five years, or a fine not exceeding five thousand pesos for violation of the requirements of asset declaration, or both. In addition, there is a penalty against the head of office and/or the chief or head of the personnel or administrative divisions, who fail to perform duties relative to the processing of asset statements.
Another example is Thailand. In this country, any person that intentionally fails to submit an asset declaration must vacate his or her office as from the date of the expiration of the time-limit set. They are not allowed to take a position as a state official for the period of five years from the date of their leaving office.
In some countries, the public can have access to asset declarations and statements in one way or another. These countries include Latvia, Mexico, Romania, Uganda, the Philippines and Thailand, to name a few.
In fact, without public access or fair and effective enforcement, disclosure will likely have a limited impact. Variations also exist in terms of methods of recording and publishing declarations, including institutions and bodies in charge of monitoring and evaluating disclosure.
The Philippines, for instance, has set up a Data Bank System to store statements of assets, and liabilities installed in the office of the ombudsman to capture statements filed at the central office. This system has the potential to track compliance by producing a report, showing a list of filers who filed statements in previous years. It might also be useful in trend analysis by providing data about the yearly percentage increase.
The public has access to declarations and statements, but with certain limitations. Public access to asset declaration is defined in the Philippines' law that ten days after they have been filed, any person is allowed to copy or reproduce the declarations by paying a reasonable fee. Asset statements are available to the public for a period of ten (10) years after receipt of the statement.
For Thailand, the National Counter-Corruption Commission inspects the change of assets and liabilities, and prepares an inspection report. Such a report shall be published in the government gazette. In addition, the Securities and Exchange Commission (SEC) in Thailand provides information to the public in terms of ownership and shareholders' participation in enterprises and business. This can also help in identifying, which private corporations, public officials have interests involved.
For South Korea, declarations made by top and middle level public officials are published by the government in a national public gazette. These are available in public libraries and are also widely reported in the press.
Pakistan is one of the few countries in the world with the widest scope of disclosure, involving all government servants irrespective of grade or department. This is proving to be difficult to manage and implement given the huge amount of declarations and the limited resources available in this regard with the departments or the agencies in charge of verifying and monitoring accuracy.
SEVERAL OPTIONS CAN BE CONSIDERED FOR THE NEAR FUTURE, INCLUDING
(i). Assigning task of enforcing compliance, entering in database and monitoring of accuracy to a designated cell.
(ii). Random verification of expenses and reconciliation of assets.
(iii). Reducing the scope to senior civil servants of BPS-19 and above.
(iv). Giving autonomy to provinces to verify and check accuracy of declarations.
(v). Publication in official gazette of declaration of BPS-20.
(vi) Providing copy on payment of fee to general public.
(vii). Allowing non-governmental groups, such as Transparency International, Pakistan Chapter, and media to have access to declarations under certain conditions. These options are not exclusive of one another and a combination of them can be implemented relatively easy.